Thirty-one retired judges have issued a pre-election plea to Australia’s political leaders to urgently establish a strong anti-corruption commission, warning it is critical in reversing the “serious erosion of our shared democratic principles”.
In a letter sent to Scott Morrison, Anthony Albanese and the leaders of the Greens, One Nation and the United Australia Party on Wednesday, the judges say the case for an effective national integrity commission “remains impregnable”.
“Without the commission we envisage, the right of Australians to have their taxes employed for the maximum national advantage will not always prevail over the corrupt exercise of power,” their letter reads.
“We are retired judges who believe that a National Integrity Commission is urgently needed to fill the gaps in our integrity system and restore trust in our political processes. Nothing less than halting the serious erosion of our shared democratic principles is at stake.”
The letter was signed by eminent jurists including former high court judge Mary Gaudron, former Queensland supreme court chief justice Catherine Holmes, former family court chief justice Diana Bryant, former Queensland court of appeal president Margaret McMurdo and former federal court judge Michael Barker.
The intervention, organised by the Centre for Public Integrity, came after a week of continued criticisms from the Coalition about any integrity commission that operated openly by allowing public hearings and public referrals.
The Coalition’s model – which it failed to bring to parliament, breaking a 2019 election promise – allowed neither to take place.
The prime minister told reporters on Tuesday that a federal integrity commission should not operate with the same measures of open justice as courts because “it’s not a court”.
“Where matters were to proceed under our model that involved criminal behaviour, they would go to court and that’s where that process would be followed,” Morrison said.
“That’s how we’ve designed it. That’s consistent with how the justice system works.”
He has previously labelled the NSW independent commission against corruption a “kangaroo court” due to its holding of public hearings, a criticism that ignores the fact that the body generally conducts private examinations and investigations prior to deciding whether to make inquiries public.
Barker, a former federal court judge and Western Australian supreme court judge, told the Guardian the criticisms misunderstood the role of such bodies, which had proven their worth “every step of the way”.
“This is the thing about the Icac criticisms – none of which, in my view, are valid – they all misunderstand that the job of these agencies is to bring questionable dealings out into the sunlight,” he said. “There’s absolutely no doubt that the old expression ‘the sunlight is the best disinfectant’ is absolutely correct.”
The government’s proposed integrity commission was widely criticised for its inability to hold public hearings, its narrow definition of corruption, the high threshold it required to begin an investigation, its inability to take public tip-offs and the uneven way it treated law enforcement and government.
Barker described the model as “pathetic”.
“It’s the sort of body that carries the name but is entirely the opposite from what the public wants,” he said. “It’s designed to frustrate the operation of an effective anti-corruption commission at every step.”
Labor has promised to establish a different model by the end of the year. In outlining the principles it supports for such a body, Labor embraced the need for public hearings, and an ability to investigate retrospectively, take public tip-offs and investigate a broader range of conduct.
The lack of detail put forward by Labor has raised some concerns among the teal independents, who have campaigned hard on an integrity commission.
At an Australia Institute event last week, independent MP Helen Haines, who put forward her own detailed legislation for an integrity commission, said she would need to see “detailed legislation” before offering any support to Labor.
“I don’t make decisions on a set of broad principles,” she said. “Any piece of legislation, I need to see the detail and understand that and work closely with whomever is the attorney general to ensure its model is fit for purpose.”
The Australia Institute also published a landmark study this week showing the number of political appointments to the administrative appeals tribunal (AAT) has jumped to almost one in three under the last three Coalition governments, compared to 6% under the Howard government and 5% under the Rudd and Gillard governments.
The Australia Institute director, Ben Oquist, said the appointments were radically reshaping a key judicial oversight body.
“It’s not just terrible for the AAT but terrible for our democracy. It’s a key part of legal and democratic infrastructure,” he told the Nine papers.
“And it’s got so bad, it’s going to need radical solutions to fix it.”
